SULABHA GOVIND VIDWANS Vs. SHRAVAN M SHEVALE

JUDGEMENT

(1.) THE subject matter of the controversy raised by this petition stands concluded by ratio of decisions of the Supreme Court in the case of (Dr. Chakradhar Paswan v. State of Bihar and others) A. I. R. 1988 S. C. 959 and in the case of (Smt. Chetana Dilip Motghare v. Bhide Girls Education Society, Nagpur and others) A. I. R. 1994 S. C. 1917. Article 16 (1) of the Constitution of India guarantees equality of opportunity for all citizens in all matters relating to employment or appointment to any office under the State. Article 16 (2) of the Constitution provides that no citizen shall on grounds only of religion, race, caste, sex, descend, place of birth, residence or any of them be ineligible for or discriminated against in respect of any employment or office under the State. Article 16 (4) of the Constitution provides that nothing in Article 16 shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the servcice under the State. It is the constitutional mandate emanating from the above referred articles of the Constitution that a single promotional post or the isolated post cannot be reserved for being filled up by the candidates falling within the ambit of Article 16 (4) of the Constitution. The isolated post must necessarily be treated as an open post. As far back as 8th March, 1988, the Supreme Court decided Dr. Chakradhar Paswans case. In para. 8 of the above referred judgment in Chakradhar Paswans case, the Supreme Court observed that if there was only one post in the cadre, there could be no reservation under Article 16 (4) of the Constitution. In the same para the Apex Court further observed that the whole concept of reservation or application of the 50 point roster was that there were more than one post and the reservation could be upto 50%. The same view was taken by our High Court in a very detailed and careful judgment in the case of (Maharashtiya Mandal and another v. University of Poona and others) reported in 1994 Mah. L. J. 647:1994 (1) Bom C. R. 603. It is, however, shocking to discover that the State of Maharashtra and its officers have infringed the constitutional right of the citizens like the petitioner for several years in teeth of the above referred judgments of the Supreme Court and the Education Officer has even issued a letter dated 1st April, 1991 to the management of Shiv Samarth Sevak Mandal stating therein that the decisions of the Supreme Court on the subject have been stayed by the Government of Maharashtra. We are now informed by the learned Assistant Government Pleader Smt. Mogre that on 21st February, 1994 a fresh circular has been issued by the Government of Maharashtra in conformity with the view taken by the Supreme Court in the earlier decisions.

(2.) LET us now turn to the facts and analyse as to what the controversy is.

(3.) SMT. Sulbha Govind Vidwans, the writ petitioner is this petition, is M. A. , B. Ed. On 4th June 1973, the petitioner was appointed as an Assistant Teacher in the primary school run by Shiv Samarth Sevak Mandal, Thane. On 13th June, 1977, the petitioner was transferred to secondary section of the said school as Assistant Teacher. The respondent No. 1 was appointed as an Assistant Teacher much later i. e. on or about 2nd January, 1979. The respondent No. 1 belongs to the scheduledd caste. The petitioner is senier to respondent No. 1.